EXHIBIT 10.27


 


JOINT
VENTURE AGREEMENT


 


This JOINT
VENTURE AGREEMENT (the “Agreement”), dated November 4,
2005 the “Effective Date”), between  CYTORI THERAPEUTICS, INC. (formerly MACROPORE BIOSURGERY, INC.), a
Delaware corporation with its principal place of business located at 3020
Callan Road, San Diego, CA 92121, U.S.A. (“Cytori”), and OLYMPUS CORPORATION,
a Japanese corporation with its principal office at 2-4h3-2 Hatagaya
Shibuya-ku, Tokyo, Japan (“Olympus”).
(Cytori and Olympus may each
individually be referred to herein as a “Party” and
collectively as the “Parties.”)


 


RECITALS


 


A. Cytori has acquired and possesses, through the
expenditure of considerable time, effort and money, certain intellectual property rights (including patents, patent applications and
technical information) to regenerative cell technology, including scientific
equipment used to carry out regenerative cell therapies and treatments.


 


B. Olympus is a leading developer and manufacturer of medical and scientific
equipment and has acquired and possesses, through the expenditure of
considerable time, effort and money, certain intellectual property rights
(including patents, patent applications and technical information) related to
medical and scientific equipment.


 


C. Olympus and Cytori entered into a confidentiality agreement dated November 30,
2004 (the “Confidentiality Agreement”).


 


D.
Olympus and Cytori  entered
into a stock purchase agreement (the “Common Stock Purchase
Agreement”), dated April 28,
2005, pursuant to which Olympus acquired 1,100,000 common shares of
Cytori.


 


E.
The Parties desire to form a joint venture corporation under the laws of the State of Delaware(“NewCo”) for
the purposes of developing, licensing
and manufacturing certain medical
equipment.


 


F.
Olympus and Cytori intend in this Agreement to set forth the principal
agreement between them regarding the formation of NewCo.


 


NOW, THEREFORE, in
consideration of the mutual agreements, covenants and provisions contained
herein, and other valuable consideration, the Parties hereto agree as follows:


 


SECTION 1:                                DEFINITIONS


 


Unless the provisions of
the Agreement otherwise provide, each of the following capitalized terms used
in the Agreement shall have the meaning set out below.


 


“Affiliate”
means, as to any
Party, any Person that, directly or indirectly, controls, or is controlled by,
or is under common control with, such Party, where “control” (including, with
its correlative meanings, “controlled by” and “under common control with”)
means (a) the beneficial ownership of fifty percent (50%) or more of the
outstanding voting securities of a Party, or (b) the possession, directly
or indirectly, of the power to direct or cause the direction of management or
policies of a Party, whether through the ownership of securities or partnership
or other ownership interests, by contract or otherwise.


 

















 


“Agreement”
has the meaning set forth
in the Preamble.


 


“Aggregate Purchase Price” has the
meaning set forth in Section 4.2


 


“Ancillary
Agreements” means the License/ Joint Development Agreement, the Shareholders
Agreement, the License/ Commercial Agreement, the Olympus Share Subscription
Agreement, the NewCo Share Subscription Agreement and the Three-Way NDA;
provided, however, where the context herein would provide that NewCo is a party
to the Ancillary Agreements, such usage of the term “Ancillary Agreements”
shall be understood to exclude the Shareholders Agreement.


 


“Bankruptcy
and Equity Exception” means the extent to which enforceability
of this Agreement (a) may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general application affecting or relating to the enforcement of creditors’
rights generally and (b) is subject to general principles of equity,
whether considered in a proceeding at law or in equity.


 


“Closing”
has the meaning set forth in Section 8.1 below.


 


“Closing
Date” has the meaning set forth in Section 8.1 below.


 


“Cytori” has the meaning set forth
in the Preamble.


 


“Disclosure Schedule” has the
meaning set forth in Section 5.1.


 


“Effective Date” has the meaning set
forth in the Preamble.


 


“Governmental
Authority” means any federal, state, local, foreign or
international body, court, government, department, commission, board, bureau,
agency, official or other administrative or governmental authority.


 


“Indemnified Party” has the meaning
set forth in Section 9.4(a).


 


“Indemnifying Party” has the meaning
set forth in Section 9.4(a).


 


“Indemnity Claim” has the meaning
set forth in Section 9.4(a).


 


“Indemnity Claim Notice” has the
meaning set forth in Section 9.4(a).


 


“Intellectual
Property Rights” shall mean (a) all inventions (whether
patentable or unpatentable and whether or not actually reduced to practice),
all improvements thereto (but only if such improvements relate to inventions in
existence as of the Closing), and all patents, provisional and non-provisional
patent applications and patent disclosures, together with all reissuances,
continuations, continuations-in-part, divisionals, renewals, extensions and
reexaminations thereof, (b) all copyrightable works, all works of authorship, all copyrights,
and all applications, registrations and renewals in connection therewith, (c) all
mask works and all applications, registrations and renewals in connection therewith,
(d) all trademarks, service marks, trade names, service names, brand
names, trade dress rights, logos, Internet domain names and corporate names,
together with the goodwill associated with any of the foregoing, (e) all trade secrets and
confidential business information (including, but not limited to, ideas,
research and development, know-how, formulas, compositions, biochemical and
biological materials, reagents, assays, manufacturing and production processes
and techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information and business and marketing plans
and proposals), and (f) any and all applications and registrations of the
foregoing (in any jurisdiction).


 


“Liability” means any debt, adverse claim,
liability, obligation or commitment of any kind or nature,


 

















 


whether direct or
indirect, fixed, absolute or contingent, determined or determinable, matured or
unmatured, accrued or unaccrued, liquidated or unliquidated, due or to become
due, asserted or unasserted, or known or unknown, and regardless of whether
arising out of or based upon contract, tort, strict liability, statute or
otherwise or whether required by US GAAP to be reflected as a liability on such
Party’s balance sheet or disclosed in the related notes.


 


“License/ Commercial Agreement”
means the License/ Commercial Agreement to be entered into by and between NewCo
and Cytori at Closing, in substantially the same form as attached hereto
as Exhibit 1.


 


“License/ Joint Development Agreement”
means the License/ Joint Research and Development Agreement to be entered into
by and among Cytori, NewCo and Olympus at Closing, in substantially the same form as
attached hereto as Exhibit 2.


 


“Licensed Field” shall
mean the use of Licensed IP for the purpose of designing, developing,
manufacturing, testing and servicing Licensed Products for sale exclusively
from NewCo to Cytori.


 


“Licensed IP” means all Intellectual
Property Rights owned or controlled by either Party which are necessary or useful
to design, develop, manufacture, test, analyze, market, offer to sell to
Cytori, sell to Cytori and service all current and future generations of the
Licensed Product(s). The term “Licensed IP” shall include all Intellectual
Property Rights licensed to NewCo by Cytori and by Olympus, whether pursuant to
this Agreement, any Ancillary Agreement or otherwise.


 


“Licensed Product(s)”
shall mean any automated devices (and related component parts) that *** separate
and concentrate *** cells (including stem cells and other regenerative cells)
from harvested adipose tissue (fat tissue). The device components include, but
are not limited to,


***


***


***.


 


“Liens” means all liens, pledges, charges,
mortgages, deeds of trust, pledges, hypothecations, title defects,
restrictions, conditions, easements, claims, options, leases, rights of
possession or use, encumbrances, adverse rights or claims and security
interests of any kind or nature whatsoever (including any restriction on the
right to vote or transfer), whether voluntarily incurred or arising by
operation of law or otherwise,
including, without limitation, any written or oral agreement to give or grant
any of the foregoing.


 


“Loss” shall mean any claim,
demand, Liability, loss, damage, deficiency, assessment, judgment, settlement,
remediation and costs or expenses (including reasonable attorney, consultant
and expert fees and expenses).


 


“Material Adverse Event” shall mean
any change, event, occurrence or state of facts which has had, or would
reasonably be expected to have, a material adverse effect on (a) Cytori’s or NewCo’s ability to perform their
respective obligations set forth in this Agreement or the Ancillary Agreements,
(b) the Licensed IP provided to
Newco by Cytori or by Olympus, or (c) the transactions contemplated by
this Agreement or the Ancillary Agreements.


 


“Material
Litigation” shall mean any litigation, action, suit, claim, investigation or administrative,
arbitral or other proceedings which has had, or would reasonably be expected to
have, a material adverse effect on (a) the Licensed IP
provided to Newco by Cytori or by Olympus, (b) Cytori’s or NewCo’s ability
to perform their respective obligations set forth in this Agreement or the
Ancillary Agreements, or (c) the transactions contemplated by this
Agreement or the Ancillary Agreements. The Patent Dispute shall not constitute
a Material Litigation under this Agreement.


 






*** Material has been
omitted pursuant to a request for confidential treatment filed separately with
the Securities and Exchange Commission.


 

















 


“NewCo” has the meaning set forth in
the Recitals.


 


“NewCo Share Subscription Agreement”
means the Share Subscription Agreement to be entered into by and between Cytori
and NewCo concurrently with the License/ Commercial Agreement, in substantially
the same form as attached hereto as Exhibit 3.


 


“Olympus” has the meaning set forth
in the Preamble.


 


“Olympus Share Subscription Agreement”
means the Share Subscription Agreement to be entered into by and between
Olympus and NewCo concurrently with the License/ Commercial Agreement, in
substantially the same form as attached hereto as Exhibit 4.


 


“Parties” and “Party” hasthe meaning set forth in the Preamble.


 


“Patent Dispute” shall mean the
inventorship dispute between the Regents of the University of California and
the University of Pittsburgh concerning U.S. Patent Number 6,777,231 B1,
including, without limitation, the claim filed by the
University of Pittsburgh with the Central District of California, Case No. CV-04-9014, entitled Complaint
for Correction of Inventorship under 35 USC Sections 1 and 256, against some of the named inventors of U.S.
Patent Number 6,777,231.


 


“Person” shall mean an association,
corporation, individual, partnership, trust or any other entity or
organization, including a governmental entity, other than a Party.


 


“Rules” has the meaning set forth in
Section 11.1.


 


“Shareholders Agreement” means the
Shareholders Agreement to be entered into by and between the Parties, in
substantially the same form as attached hereto as Exhibit 5.


 


“Subscription Shares” has the
meaning set forth in Section 4.1.


 


“Survival Period” has the meaning
set forth in Section 9.1.


 


“Three-Way NDA” shall mean
the Three-Way Non-Disclosure Agreement, dated [           ], entered into by and among Cytori,
Olympus and NewCo.


 


SECTION 2:                           ESTABLISHMENT OF NEWCO


 


2.1                                 Establishment of NewCo. Cytori shall, on or prior to the Closing
Date, but in any event within sixty (60) days following the Effective Date:


 


(a)                                                                                  Form and incorporate NewCo, the company
name of which shall be “Olympus-Cytori Inc.”, under the laws of the State of
Delaware, through which Cytori will be issued share certificates of NewCo
containing the legend set forth in Section 4.1 of the Shareholders
Agreement;


 


(b)                                                                                 Adopt the certificate of incorporation attached
hereto as Exhibit 2.1(b), file such certificate of incorporation
with the Delaware Secretary of State and provide a certified copy thereof as
accepted by the Delaware Secretary of State to Olympus; and


 


(c)                                                                                  Adopt the by-laws of NewCo attached hereto as Exhibit 2.1(c).


 

















 


2.2                                 Management of NewCo Prior to Closing. From the time NewCo is established by Cytori
and up to and until Closing, Cytori shall procure and ensure that NewCo does
not:


 


(a)                                  except as expressly set forth in the NewCo
Share Subscription Agreement and this Agreement, (i) authorize,
issue, sell or grant, or commit to authorize, issue, sell or grant, any capital
stock, voting securities or equity interests, or any securities or rights
convertible into, exchangeable or exercisable for, or evidencing the right to
subscribe for, any shares of its capital stock, voting securities or equity
interests, or any rights, warrants, options, calls, commitments or any other
agreements of any kind to purchase, acquire or register any shares of its
capital stock, voting securities or equity interests or any securities or
rights convertible into, exchangeable or exercisable for, or evidencing the
right to subscribe for, any shares of its capital stock, voting securities or
equity interests; (ii) redeem, repurchase or otherwise acquire any of its
outstanding shares of capital stock, voting securities or equity interests, or
any rights, warrants or options to acquire any shares of its capital stock,
voting securities or equity interests; (iii) declare, set aside for
payment or pay any dividend on, or make any other distribution in respect of,
any shares of its capital stock or otherwise make any payments to its
stockholders in their capacity as such; or (iv) split, combine, subdivide or reclassify
any shares of its capital stock;


 


(b)                                 incur any
indebtedness for borrowed money or guarantee any indebtedness (or enter into a “keep
well” or similar agreement) or assume, endorse or otherwise become responsible
for the obligations of any other Person;


 


(c)                                  sell, transfer,
lease, license, mortgage, encumber or otherwise dispose of any assets of NewCo;


 


(d)                                 make any
capital expenditures;


 


(e)                                  make any
acquisition (by purchase of securities or assets, merger or consolidation, or
otherwise) of any other Person, business, division or assets;


 


(f)                                    make any
investment (by contribution to capital, property transfers, purchase of
securities or otherwise) in, or loan or advance to, any Person;


 


(g)                                 except for the Ancillary Agreements to
which Newco is a party, enter into any contracts, agreements, undertakings, covenants,
leases, intellectual property licenses, or any other arrangement with any
Person;


 


(h)                                 terminate or amend any Ancillary Agreement
to which Newco is a party, or otherwise waive or release any right or claim
that NewCo may have under any Ancillary Agreement to which Newco is a
party;


 


(i)                                     hire any
employees for NewCo;


 


(j)                                     initiate, settle or compromise any
litigation or other adversarial proceeding;


 


(k)                                  engage in any business;


 


(l)                                     amend NewCo’s by-laws or certificate of
incorporation; and


 


(m)                               pay, discharge, settle or satisfy any
claims, liabilities or obligations.


 


2.3                                 Contracts Between NewCo and Cytori. Cytori shall ensure and procure that at Closing
(a) NewCo shall duly and validly execute each Ancillary Agreement to which
NewCo is a party, and (b) all common stock of NewCo pursuant to the NewCo
Share Subscription Agreement shall be issued to Cytori before or at the
Closing.


 


2.4                                 Notification of Bank Account. Promptly following the establishment of NewCo
by Cytori, but in no event


 

















 


later
than seven (7) days prior to the Closing Date, Cytori shall, and shall
procure and ensure that NewCo shall, notify Olympus in writing of the bank
account information to which Olympus shall pay the Aggregate Purchase Price
pursuant to Sections 4.2 and 8.3.


 


2.5                                 Corporate Authority and Other Approvals. Cytori shall, and shall procure that NewCo
shall, promptly following establishment of NewCo, but in any event prior to the
Closing, conduct any and all necessary board of directors meetings,
shareholders meetings, filings and/or registrations, and shall obtain any and
all necessary (whether corporate, governmental or otherwise) consents,
approvals, permits, licenses or registrations that may be necessary or prudent
for Cytori and/or NewCo to perform, consummate and effectuate the transactions
contemplated by this Agreement and the Ancillary Agreements.


 


2.6                                 Reasonable Access. At all times following Cytori’s establishment
of NewCo pursuant to Section 2.1 through the Closing, Cytori
shall, and shall procure and ensure (to the extent that Cytori then has control
of NewCo’s Board of Directors or management) that NewCo shall, provide Olympus and its agents and
representatives reasonable access during normal business hours and upon
reasonable notice as described below to all of the premises, properties, assets, financial
statements and records, books, contracts, documents and commitments of or
relating to NewCo, and shall furnish Olympus and its authorized agents and representatives
with all such information concerning NewCo as Olympus may reasonably request.


 


2.7                                 Notice of Breaches. Cytori shall, promptly after receiving written notice of the occurrence of, or of
the impending or threatened occurrence of, any event which would cause or
constitute a material breach of any of its warranties, representations,
covenants or agreements contained in this Agreement or any Ancillary Agreement,
give notice to Olympus in writing of such event or occurrence or impending or
threatened event or occurrence, and shall use its commercially reasonable
efforts to prevent or promptly remedy such material breach.


 


2.8                                 Compliance
With Laws. At all times following
Cytori’s establishment of NewCo pursuant to Section 2.1 (or execution of
each Ancillary Agreement, as applicable) up to the time immediately preceding
the Closing, Cytori shall, and shall procure that NewCo shall, comply with any and all
laws that are applicable to Cytori, NewCo and the transactions contemplated in
this Agreement and each applicable Ancillary Agreement.


 


2.9                                 Cytori
IP Prosecution Notifications.   Cytori
shall provide Olympus with all copies of correspondences regarding Licensed IP
provided by Cytori to New co. and prosecution thereof, including, without
limitation, all correspondences exchanged with the US Patent and Trademark
Office and any applicable foreign patent offices. Prior to making any decisions
with respect to the prosecution of Licensed IP provided by Cytori to New co,
Cytori shall afford Olympus a reasonable opportunity to provide any comments
Olympus may have. In addition, Cytori shall provide Olympus a minimum of thirty (30) days to provide comments to Cytori regarding patent office actions
that have a reply period greater than one month, and fifteen (15) days from
Olympus’ receipt of Office Actions issued during prosecution of the Licensed IP
that have a reply period of one month. Cytori shall consider in good faith all
comments made by Olympus.


 


SECTION 3:                           COVENANTS OF OLYMPUS


 


3.1                                 Compliance With Laws. Olympus shall comply with all laws that are
applicable to Olympus and to the transactions contemplated in this Agreement.


 


3.2                                 Corporate Authority and Other Approvals. Olympus shall, prior to the Closing, conduct
any and all necessary board of directors meetings, shareholders meetings,
filings and/or registrations, and shall obtain any and all necessary (whether
corporate, governmental or otherwise) consents, approvals, permits, licenses or
registrations that may be necessary or prudent for Olympus and/or Newco to
perform, consummate and effectuate the transactions contemplated by this
Agreement and the Ancillary Agreements.


 

















 


SECTION 4:                           SUBSCRIPTION TO COMMON STOCK OF
NEWCO


 


4.1                                 Subscription Shares. Subject to the terms and conditions of this
Agreement and of the Olympus Share Subscription Agreement, which Olympus shall
execute and deliver to NewCo at the Closing, Cytori shall procure and ensure
that at the Closing NewCo shall issue and sell to Olympus, and Olympus shall
subscribe for and purchase from NewCo, one thousand (1,000) common shares in
the capital of NewCo (the “Subscription Shares”),
which shall constitute fifty percent (50%) of the issued and outstanding shares
of NewCo on a fully diluted basis taking into account the common stock of NewCo
issued to Cytori concurrently with the Closing pursuant to the NewCo Share
Subscription Agreement.


 


4.2                                 Purchase
Price.. The aggregate purchase price for the Subscription
Shares shall be ***
   ***                  United States Dollars (US$***) (the “Aggregate Purchase Price”).


 


SECTION 5:                           REPRESENTATIONS AND WARRANTIES OF
CYTORI


 


5.1                                 Representations and Warranties of Cytori. Except as set forth in Cytori’s disclosure schedule attached
as Schedule 5.1 hereto (the “Disclosure Schedule”),
each section of which qualifies the correspondingly numbered
representation and warranty to the extent expressly specified therein and other
representations and warranties to the extent that a matter is disclosed in such
a way as to make its relevance to the information called for by such other representation
and warranty readily apparent, Cytori represents and warrants to Olympus that
the statements contained in this Section 5 are correct and complete as of
the Effective Date and will be correct and complete as of the Closing Date (as
though made then).


 


(a)                                  Organization and Authority of Cytori. Cytori is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
is in good standing and duly qualified to do business in California and has all
requisite power and authority (corporate and otherwise) to execute, deliver and
perform this Agreement, each Ancillary Agreement to which Cytori is a
party, and to consummate the transactions contemplated hereby and thereby. This
Agreement and each Ancillary Agreement to which Cytori is a party has been or
will be at the Closing, duly and validly executed and delivered by Cytori and
constitutes or will constitute valid and binding obligations of Cytori,
enforceable against it in accordance with the terms set forth in those
agreements, subject to the Bankruptcy and Equity Exception.


 


(b)                                 Status of NewCo. At all times following Cytori’s establishment
of NewCo pursuant to Section 2.1 and up to and until completion of the
Closing:


 


(i)                                     NewCo will be a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
in good standing and duly qualified to do
business in California and will have all requisite power and authority
(corporate and otherwise) to execute, deliver and perform each
Ancillary Agreement to which Newco is a party, to own all of its assets and to
conduct its business, and to consummate the transactions contemplated hereby
and thereby.


 


(ii)                                  NewCo will have a total of Three thousand
(3,000) authorized shares of common stock, one thousand (1,000) shares of which
will be issued and outstanding and will reflect the common stock of NewCo
issued to Cytori concurrently with the Closing pursuant to the NewCo Share
Subscription Agreement, and there will be no other capital stock of NewCo.


 


(iii)                               Except for the Subscription Shares to be issued
to Olympus in accordance with Section 4,


 






*** Material has been
omitted pursuant to a request for confidential treatment filed separately with
the Securities and Exchange Commission.


 

















 


Cytori
will be the sole owner, legally, beneficially and of record, of all such issued
and outstanding shares of common stock, all of which will have been duly and
validly issued in compliance with all applicable laws, and all of which will be
fully paid, non-assessable and free and clear of any and all Liens.


 


(iv)                              There are no outstanding options or warrants
regarding the capital stock of NewCo, and NewCo has not issued or authorized,
and will not issue or authorize prior to Closing, any capital stock (except for
shares of Common Stock specifically set forth in Section 5.1(b)(ii) or
to be issued to Olympus pursuant to Section 4.1), security, debt
instrument, option, warrant or other right of any nature that is or may be
convertible into common stock or any other capital stock of, or equity interest
in, NewCo. No shares of NewCo’s outstanding capital stock are subject to any
rights of first refusal or other rights to purchase stock (whether in favor of
Cytori, Olympus or any other Person), pursuant to any agreement or commitment
of NewCo.


 


(v)                                 Other than the Ancillary Agreements to which
Newco is a party, NewCo has not entered into any agreements, contracts,
arrangements, or understandings with any Person, and has not conducted any
business whatsoever.


 


(vi)                              NewCo has no Liabilities or obligations of any
nature whatsoever (whether absolute, accrued, contingent, or otherwise).


 


(c)                                  Binding Effect on NewCo. NewCo shall duly and validly execute each
Ancillary Agreement to which NewCo is a party. Upon corresponding execution and
delivery by each other Party thereto, each such Ancillary Agreement will be
binding and enforceable against NewCo in accordance with its terms and
conditions, subject to the Bankruptcy and Equity Exception.


 


(d)                                 No Conflicts. Neither the execution, delivery and performance of this Agreement by
Cytori, nor the consummation of the transactions contemplated hereby or by each
of the Ancillary Agreements to which Cytori is a party, will (i) conflict
with or violate any provision of Cytori’s organizational documents, any
agreement to which Cytori is a party or any judgment, order of any court or
governmental body by which Cytori or its assets are bound, or (ii) violate
any law or permit applicable to Cytori.


 


(e)                                  No Consents. The execution, delivery and performance by Cytori of this Agreement, and
the execution, delivery and performance by Cytori and NewCo of the Ancillary
Agreements to which Cytori and Newco, respectively, are parties, instruments
and/or documents required to complete the transactions contemplated herein,
except to the extent otherwise provided in each relevant Ancillary Agreement, (i) do
not require any action by or in respect of, or filing with, any Governmental
Authority; and (ii) do not require consent of any third parties for the
consummation by Cytori and/or NewCo of the transactions contemplated by this
Agreement or any of the Ancillary Agreements, as applicable to each of Cytori
and NewCo.


 


(f)                                    Litigation. There
are no material actions, suits, claims, investigations or administrative,
arbitration or other proceedings pending or, to Cytori’s knowledge, threatened
against Cytori
before or by any court, arbitration tribunal or Governmental Authority,
domestic or foreign, that relate to the Licensed IP provided to Newco by Cytori or the transactions
contemplated by this Agreement and the Ancillary Agreements.


 


(g)                                 Intellectual Property Rights. The Licensed IP provided to NewCo by Cytori
is accurately described in reasonable detail in Schedule 5.1(g)(i).
The Patent Dispute is fully and accurately described in Schedule 5.1(g)(ii).
Cytori has full right, title and interest in, and ownership of or license
rights to the Licensed IP provided to Newco by Cytori, as described in Schedule 5.1(g)(i).
Furthermore, to Cytori’s best knowledge, in all material respects the Licensed
IP provided to NewCo by Cytori (i) constitutes all of the Intellectual
Property Rights used by Cytori to develop, manufacture and sell the Licensed
Product(s), (ii) has been duly registered or filed (as applicable),
properly maintained (as in relation to the confidential nature of or controlled
use of certain Intellectual Property Rights such as trade secrets and
trademarks), and is subject to protection (as applicable) and is in full force
and effect (as applicable), and (iii) except for the Patent Dispute, is
free and clear of all Liens. Furthermore, it is


 

















 


hereby
certified by Cytori that to Cytori’s best knowledge, (I) there are no
threatened or pending claims that Cytori’s development and manufacture of the Licensed
Product(s) infringe the Intellectual Property Right of any third party, or that
any portion of the Licensed IP provided to NewCo by Cytori is invalid or
unenforceable, and (II) to Cytori’s best knowledge, no third party is
infringing any of the Licensed IP provided to NewCo by Cytori.


 


(h)                                 Accuracy
of Representations and Warranties. The representations and warranties
contained in this Section 5
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements contained in this Section 5 not misleading in light of the
circumstances in which such statements are made.


 


5.2                                 Notice
Regarding Representations and Warranties. During the period
between the Effective Date and the date on which Closing occurs, Cytori shall
promptly notify Olympus in writing of any occurrence that would render any
representation or warranty made by Cytori in this Section 5 materially
false or misleading.


 


SECTION 6:                           REPRESENTATIONS AND WARRANTIES OF
OLYMPUS


 


6.1                                 Representations and Warranties of Olympus. Olympus represents and warrants to Cytori
that the statements contained in this Section 6 are correct and complete
as of the Effective Date and will be correct and complete as of the Closing
Date (as though made then).


 


(a)                                  Organization and Authority. Olympus is a corporation duly organized and
validly existing under the laws of Japan, and has all requisite power and
authority (corporate and otherwise) to execute, deliver and perform this
Agreement and each Ancillary Agreement to which Olympus is a party, and has, or
will have prior to Closing, all requisite power and authority (corporate and
otherwise) to consummate the transactions contemplated hereby and thereby,
including, without limitation, the execution and delivery of the Shareholders
Agreement. This Agreement and each Ancillary Agreement to which Olympus is a
party has been duly and validly executed and delivered by Olympus, and
constitutes valid and binding obligations of Olympus, enforceable against it in
accordance with the terms set forth in those agreements, subject to the
Bankruptcy and Equity Exception.


 


(b)                                 No Conflicts. Neither the execution, delivery and performance of this Agreement by
Olympus, nor the consummation of the transactions contemplated hereby or by
each of the Ancillary Agreements to which Olympus is a party, will (i) conflict
with or violate any provision of Olympus’ organizational documents, any
agreement to which Olympus is a party or any judgment, order of any court or
governmental body by which Olympus or any of its assets is bound, or (ii) violate
any law or permit applicable to Olympus.


 


(c)                                  No Consents. The execution, delivery and performance by Olympus of this Agreement and
the execution, delivery and performance by Olympus and NewCo of the Ancillary
Agreements to which Olympus and Newco, respectively, are parties, each
Ancillary Agreement to which Olympus is a party, and any other agreements,
instruments and/or documents required to complete the transactions contemplated
herein, except to the extent otherwise provided in each relevant Ancillary
Agreement, (i) do not require any action by or in respect of, or filing with, any Governmental Authority; and (ii) do
not require consent of any third parties for the consummation by Olympus of the
transactions contemplated by this Agreement and each of the Ancillary
Agreements to which Olympus is a party.


 


(d)                                 Accuracy
of Representations and Warranties. The representations and warranties
contained in this Section 6
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements contained in this Section 6 not misleading in light of the
circumstances in which such statements are made.


 


6.2                                 Notice
Regarding Representations and Warranties. During the period
between the Effective Date and the date on which Closing occurs, Olympus shall
promptly notify Cytori in writing of any occurrence that would render


 

















 


any representation or warranty made by Olympus
in this Section 6 materially false or misleading.


 

















 


SECTION 7.                            CONDITIONS PRECEDENT


 


7.1                                 Olympus’ Conditions Precedent. Olympus’ obligations set forth in this
Agreement, including, without limitation, Olympus’ obligation to purchase the
Subscription Shares, shall be subject to the satisfaction of the following
conditions precedent:


 


(a)                                  The receipt
of all internal corporate approvals of Olympus, including, without limitation,
board approvals, required for the execution and delivery of this Agreement, and
all Ancillary Agreements to which Olympus is a party, and the performance of
all of Olympus’ obligations hereunder and thereunder;


 


(b)                                 There being
no material breach by Cytori or Newco of any provision of this Agreement or any
Ancillary Agreement to which Cytori or Newco, respectively, is a party,
including, but not limited to, Cytori’s representations and warranties set
forth in Section 5, and Cytori’s covenants set forth in Section 2;


 


(c)                                  The full and
complete satisfaction of all covenants of Cytori required to be performed on or
prior to Closing, and that all representations and warranties of Cytori set
forth in Section 5 have been and are true and correct in all material
respects as of the Effective Date and as though made on the Closing Date
(except to the extent such representations and warranties expressly relate to
an earlier date, and in such case, as of such earlier date);


 


(d)                                 Each
Ancillary Agreement to which Newco and Cytori are parties shall have been duly
and validly executed by NewCo and Cytori and delivered to Olympus;


 


(e)                                  The
Shareholders Agreement shall have been duly and validly executed by Cytori and
delivered to Olympus;


 


(f)                                    The License/
Joint Development Agreement shall have been duly and validly executed by NewCo
and delivered to Olympus;


 


(g)                                 No statute, regulation or
order shall be in effect enjoining, restraining, preventing or prohibiting
consummation by Cytori or Newco of the transactions contemplated by this Agreement and/or the Ancillary
Agreements to
which Cytori or Newco, respectively, is a party, such that the transactions contemplated by this
Agreement and/or such Ancillary Agreements are made illegal;


 


(h)                                 There shall not
be any then-existing Material Adverse Event;


 


(i)                                     There shall not
be any then-existing Material Litigation; and


 


(j)                                     The receipt by
Cytori and Newco of any and all necessary approvals from all applicable
governmental agencies.


 


7.2                                 Cytori’s
Conditions Precedent. Closing, and Cytori’s obligations with respect
thereto, shall be subject to the satisfaction of the following conditions precedent:


 


(a)                                  There being
no material breach by Olympus of any provision of this Agreement or any
Ancillary Agreement to which Olympus is a party, including, but not limited to,
Olympus’ representations and warranties set forth in Section 6, and
Olympus’ covenants set forth in Section 3;


 


(b)                                 The full and
complete satisfaction of all covenants of Olympus required to be performed on
or prior to Closing, and that all representations and warranties of Olympus set
forth in Section 6 have been and are accurate in all material respects as
of the Effective Date and as though made on the Closing Date (except to the
extent such representations and warranties expressly relate to an earlier date,
and in such case, as of such earlier date);


 

















 


(c)                                  Each
Ancillary Agreement to which Olympus is a party shall have been duly and
validly executed by Olympus and delivered to Cytori and/or NewCo, as
applicable; and


 


(d)                                 The receipt
by Olympus of any and all necessary approvals from all applicable governmental
agencies.


 


SECTION 8.                            CLOSING


 


8.1                                 Closing. Unless
otherwise agreed in writing by the Parties, closing of the sale and purchase of
the Subscription Shares contemplated by this Agreement (“Closing”)
shall take place at the offices of Squire, Sanders & Dempsey L.L.P. in
Los Angeles, California on November 9, 2005] (“Closing
Date”). If Closing does not take place within one (1) month
from the Effective Date, this Agreement shall automatically terminate and shall
be of no further force and effect; provided that such termination shall not
absolve a party of liability for any previous breaches of this Agreement.


 


8.2                                 Cytori’s and
NewCo’s Obligations at Closing. At Closing, Cytori shall, and shall procure
and ensure that NewCo shall, deliver to Olympus:


 


(a)                                  A certified
copy of the internal corporate approvals of NewCo required under the laws of
the State of Delaware for NewCo to execute, deliver and perform its
obligations under this Agreement and each Ancillary Agreement to which Newco is
a party;


 


(b)                                 A certified
copy of the certificate of incorporation of NewCo as accepted by the Delaware
Secretary of State, and of the by-laws of NewCo;


 


(c)                                  A certified
copy of the internal corporate approvals of Cytori required under the laws of
the State of Delaware for Cytori to execute, deliver and perform its
obligations under this Agreement and the Ancillary Agreements to which Cytori
is a party;


 


(d)                                 Certificates representing the Subscription
Shares being duly registered in the name of Olympus and containing the legend
set forth in Section 4.1 of the Shareholders Agreement, against payment by
Olympus to NewCo of the Aggregate Purchase Price therefor in accordance with
Sections 4.2 and 8.3;


 


(e)                                  The
Shareholders Agreement duly executed by Cytori;


 


(f)                                    The Olympus
Share Subscription Agreement, the License/ Joint Development Agreement duly
executed by NewCo;


 


(g)                                 The NewCo
Share Subscription Agreement, the Three-Way NDA and the License/ Commercial
Agreement duly executed by Cytori and NewCo;


 


(h)                                 A
certificate duly and validly executed by an officer of Cytori certifying full
performance of all obligations of Cytori required to be performed prior to
Closing, and that the representations and warranties made by Cytori in Section 5
are true and correct in all material respects as of Closing, in substantially
the form attached thereto as Exhibit 8.2(h).


 


8.3                                 Olympus’s
Obligations at Closing. At Closing, Olympus shall, against delivery of
each item listed in Section 8.2 and in reliance upon the representations
and warranties made by Cytori in Section 5:


 


(a)                                  Pay the cash
portion of the Aggregate Purchase Price by wire transfer of immediately available


 

















 


funds
to an account designated by NewCo in accordance with Section 2.4, which
shall be an account held and managed by NewCo;


 


(b)                                 Deliver to NewCo the Olympus Share
Subscription Agreement, the License/ Joint Development Agreement duly executed by Olympus;


 


(c)                                  Deliver to
Cytori the Shareholders Agreement duly executed by Olympus;


 


(d)                                 Deliver to
Cytori and NewCo the Three-Way NDA duly executed by Olympus; and


 


(e)                                  Deliver to
Cytori and Newco a certificate duly and validly executed by an officer of
Olympus certifying full performance of all obligations of Olympus required to
be performed prior to or at Closing, and that the representations and
warranties made by Olympus in Section 6 are true and correct in all
material respects as of Closing, in substantially the form attached
thereto as Exhibit 8.3(e).


 


Payment of the Aggregate
Purchase Price shall be without any deduction for taxes or charges of any kind (including,
without limitation, any wire transfer fees or other bank charges, or any
withholding taxes).


 


8.4                                 Further
Assurances. Each Party shall execute and deliver such documents
and take all further actions that the other Party may reasonably request from
time to time in order to effectuate or evidence the terms, purposes and intent
of this Agreement. The Parties shall cooperate with each other in securing all
consents and approvals necessary to effectuate the transactions contemplated
herein.


 


8.5                                 Closing
Conditions. Neither Party shall be required to fulfill its
respective obligations under this Section 8 unless the other Party has
fully complied with its obligations under this Section 8.


 


8.6                                 Survival
After Closing. Except as otherwise specifically provided in this
Agreement, all provisions of this Agreement shall survive Closing and shall
continue in full force and effect thereafter.


 


SECTION 9.                            SURVIVAL, INDEMNITY AND
WARRANTY


 


9.1                                 Survival.
All representations and warranties, and all covenants and agreements in this
Agreement that are to be performed on or prior to Closing, shall survive and
remain fully enforceable after the Closing Date regardless of any
investigation, inquiry or knowledge on the part of either Party, and a Party’s willingness to close the transactions contemplated hereby shall not constitute a waiver by such Party of the representations or
warranties, or covenants or agreements that are to be performed on or prior to
Closing, of the other Party in
this Agreement for the shorter of three (3) years
from the Closing Date or the applicable statutory limitation period (in each
case, the “Survival Period”). No claim
for breach of any such representation, warranty, covenant or agreement may be
brought under this Agreement unless written notice describing in reasonable
detail the nature and basis of such claim, and expressly referring to this Section 9.1,
is given on or prior to the last day of the applicable Survival Period. In the
event such written notice of a claim is so given, the right to indemnification
with respect to such claim shall survive the applicable Survival Period until
the claim is finally resolved, and any obligations with respect to the claim
are fully satisfied. For the avoidance of doubt, all covenants and agreements in
this Agreement that are to be performed, or to be continued to be performed,
after Closing, and the right to indemnification with respect to any breach
thereof, shall survive Closing and termination of this Agreement and
continue in effect indefinitely.


 


9.2                                 Cytori’s
Indemnification of Olympus. Cytori shall indemnify and hold harmless Olympus, its Affiliates, successors and assigns, and its and their
respective directors, officers, employees and agents, from and against, and pay
or reimburse each of them for and with respect to, any and all Losses suffered
by Olympus, whether or not
resulting from third party claims, relating to, arising out of or resulting
from, any breach by Cytori of any
of its representations, warranties, covenants, agreements or certifications in
this Agreement, including those arising from


 

















 


any Liability of Cytori or its Affiliates in respect of
the Licensed IP provided to Newco by Cytori or the transactions contemplated by this Agreement
and/or the Ancillary Agreements prior to Closing.


 


9.3                                 Olympus’s
Indemnification. Olympus shall
indemnify and hold harmless Cytori,
its Affiliates, successors and assigns, and its and their respective directors,
officers, employees and agents, from and against, and pay or reimburse each of
them for and with respect to, any and all Losses suffered by Cytori, whether or not resulting from
third party claims, relating to, arising out of or resulting from, any breach
by Olympus of any of its
representations, warranties, covenants, agreements or certifications in this
Agreement.


 


9.4                                 Administration
of Indemnification. For purposes of administering the indemnification
provisions set forth in Sections 9.2
and 9.3, the following procedure
shall apply:


 


(a)                                  Whenever a
claim (each, an “Indemnity Claim”)
shall arise for indemnification under this Section 9, the Party entitled
to indemnification (the “Indemnified Party”)
shall, reasonably promptly after acquiring knowledge of the Indemnity Claim,
give written notice (each, an “Indemnity Claim Notice”)
to the Party from whom
indemnification is sought (the “Indemnifying Party”)
setting forth in reasonable detail, to the extent then available, the facts
concerning the nature of the Indemnity Claim and the basis upon which the
Indemnified Party believes that it is entitled to indemnification under this Section 9.


 


(b)                                 In the event of
any Indemnity Claim resulting from or in connection with any claim by a third
party, the Indemnifying Party shall be entitled, at its sole expense, either (i) to
participate in defending against such claim or (ii) to assume the entire
defense with counsel who is selected by it and who is reasonably satisfactory
to the Indemnified Party, provided that (A) the Indemnifying Party agrees
in writing that it does not and will not contest its responsibility for
indemnifying the Indemnified Party in respect of such claim or proceeding, and (B) no
settlement shall be made and no judgment consented to without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably withheld,
conditioned or delayed (except that no such consent shall be required if the
claimant is entitled under the settlement to only monetary damages actually
paid by the Indemnifying Party). If, however, (I) the claim, action, suit or
proceeding would, if successful, result in the imposition of damages for which
the Indemnifying Party would not be responsible, or (II) representation of both
the Indemnified Party and Indemnifying Party by the same counsel would
otherwise be inappropriate due to actual or potential differing interests
between them, then the Indemnifying Party shall not be entitled to assume the
entire defense and each Party shall be entitled to retain counsel who shall
cooperate with one another in defending against such claim. In the case of item (I) of the preceding
sentence, the Indemnifying Party shall be obligated to bear only that portion
of the expense of the Indemnified Party’s counsel that is in proportion to the
claimed damages indemnifiable by the Indemnifying Party compared to the total
amount of the third-party claim against the Indemnified Party.


 


(c)                                  If, within ten (10) days
after receipt of an Indemnity Claim Notice, the Indemnifying Party fails to
give the Indemnified Party written notice of the Indemnifying Party’s election
to undertake the defense of the related Indemnity Claim, or if the Indemnifying
Party subsequently fails to diligently prosecute such defense, the Indemnified
Party may defend in such manner as it reasonably deems appropriate or
settle the claim (after giving notice thereof to the Indemnifying Party) on
such terms as the Indemnified Party may deem appropriate, and the
Indemnified Party shall be entitled to periodic reimbursement of defense
expenses incurred and prompt indemnification from the Indemnifying Party in
accordance with this Section 9.


 


(d)                                 Failure or
delay by an Indemnified Party to give a reasonably prompt notice of any
Indemnity Claim (if given prior to expiration of the applicable Survival
Period) shall not release, waive or otherwise affect an Indemnifying Party’s
obligations with respect to the Indemnity Claim, except to the extent that the
Indemnifying Party can demonstrate actual Loss or prejudice as a result of such
failure or delay.


 

















 


SECTION 10.                     Limitation
of Liability


 


TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY PARTY BE LIABLE TO THE OTHER
PARTY OR TO ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY NATURE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
BUSINESS, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR ANY
ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES
OR SERVICE, DOWNTIME, PERSONAL PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER
PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATED TO THE PARTIES’
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER SUCH
LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR
STRICT LIABILITY) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN WARNED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED
OTHERWISE IN THIS AGREEMENT, ALL REMEDIES PROVIDED FOR HEREUNDER, INCLUDING,
BUT NOT LIMITED TO, THE RIGHT TO TERMINATE THIS AGREEMENT AND ALL OF THE
REMEDIES PROVIDED BY LAW (AND NOT EXCLUDED PURSUANT TO THE FOREGOING SENTENCE),
SHALL BE DEEMED CUMULATIVE AND NON EXCLUSIVE.


 


SECTION 11.                     MISCELLANEOUS


 


11.1                           Governing
Law and Dispute Resolution. This Agreement shall in all respects be
governed by and construed in accordance with the laws of New York without
reference to principles of conflicts of laws that would require the application
of the laws of another jurisdiction. All disputes arising out of or in connection with this Agreement, or any
relationship created by or in accordance with this Agreement, shall be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce (the “Rules”) by three arbitrators. Judgment
on the award rendered by the panel of arbitrators shall be binding upon the
Parties and may be entered in any court having jurisdiction thereof. Olympus shall nominate one arbitrator and Cytori shall
nominate one arbitrator. The arbitrators so nominated by Cytori and
Olympus respectively shall jointly
nominate the third arbitrator within fifteen (15) days following the
confirmation of arbitrators nominated by Cytori and Olympus. If the arbitrators nominated
by Cytori and Olympus cannot agree
on the third arbitrator, then such third arbitrator shall be selected as
provided in the Rules. The place of the arbitration and all hearings and
meetings shall be Singapore. unless the Parties
to the arbitration otherwise agree. In addition to the Rules and except as
otherwise provided herein, the Parties agree that the arbitration shall be
conducted according to the International Bar Association Rules on the
Taking of Evidence in International Commercial Arbitration. The arbitrators may order
pre-hearing production or exchange of documentary evidence, and may require
written submissions from the relevant Parties hereto, but may not
otherwise order pre-hearing depositions or discovery. The arbitrators shall
apply the laws of New York as set forth in this Section 11.1; provided, however,
that the Federal Arbitration Act shall govern. The language of the arbitral proceedings shall be English. The
arbitrators shall not issue any award, grant any relief or take any action that
is prohibited by or inconsistent with the provisions of this Agreement.


 


No arbitration pursuant
to this Section 11.1 shall be commenced until the Party intending to request arbitration
has first given thirty (30) days written notice of its intent to the other Party and has offered to meet and confer
with one or more responsible executives of such other Party in an effort to resolve the dispute(s) described in detail in
such written notice. If one or more responsible executives of the other Party
agree, within thirty (30) days after receipt of such written notice, to meet
and confer with the requesting Party,
then no arbitration shall be commenced until such Parties have met
and conferred in an effort to resolve the dispute(s), or until sixty (60) days
has elapsed from the date such written notice has been given.


 


11.2                           Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
Parties. Neither this Agreement nor any right, license, privilege or
obligation provided herein may be assigned or transferred by either Party
without the other Party’s prior written consent, and any such attempted
assignment or transfer shall


 

















 


constitute Change of
Control (of Cytori) and/or
Change of Control (of Olympus) duly stipulated under the Shareholders
Agreement..


 


11.3                           Entire Agreement. This Agreement, the Ancillary Agreements and
the attachments, schedules and exhibits hereto, which are hereby expressly
incorporated herein by this reference, and constitute the entire understanding
and agreement between the Parties with regard to the subject matter hereof and
thereof, including without limitation the Confidentiality Agreement.


 


11.4                           Notices. Except as may be otherwise provided herein, all notices, requests,
waivers and other communications made pursuant to this Agreement shall be in
writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other Party; (b) when received, if sent by facsimile
at the address and number set forth below, with a written confirmation copy of
such facsimile sent the next business day in accordance with (c) below; (c) the
second business day after deposit with a national overnight delivery service,
postage prepaid, addressed to the other Party as set forth below, provided that
the sending Party receives a confirmation of delivery from the delivery service
provider; or (d) if earlier, when actually received.


 


	
  To Cytori:

  	
   

  	
  To Olympus:  

  
	
   

  	
   

  	
   

  
	
  3020
  Callan Road, San Diego, CA 92121, U.S.A

  	
   

  	
  2-3 Kuboyama-cho,

  
	
   

  	
   

  	
  Hachioji-shi, Tokyo, 192-8512, Japan

  
	
  Attn: Christopher J. Calhoun

  	
   

  	
   

  
	
  Fax: 858-458-0995

  	
   

  	
  Attn: Yasunobu Toyoshima

  
	
   

  	
   

  	
  Fax: +81-426-91-7350

  



 


A
Party may change or supplement its address set forth above, or may designate
additional addresses, for purposes of this Section 11.4, by giving the
other Party written notice of the new address in the manner set forth above.


 


11.5                           Amendments. This Agreement may be
modified or amended only by an instrument in writing duly executed by authorized
representatives both of
the Parties.


 


11.6                           Waivers. No waiver of any
provision hereof shall be effective unless made in writing and duly executed by an
authorized representative of the
waiving Party. The failure by
a Party to require the performance of any term or obligation of this Agreement,
or the waiver by a Party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.


 


11.7                           Cumulative Remedies. Unless expressly so stated in this Agreement
in respect of any particular right or remedy, the rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law.


 


11.8                           Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be considered
in construing this Agreement.


 


11.9                           Relationship of Parties. This Agreement shall not be deemed to
constitute either Party the agent, the licensee, the affiliate
or the representative of the other Party, and neither Party shall represent to any third party
that it has any such relationship or right of representation.


 


11.10                     Press Release. No public announcements or press releases shall be issued by either Party regarding this Agreement or
any of the activities engaged in by the Parties or NewCo pursuant to this Agreement and/or the Ancillary Agreements without
the prior written approval of the other Party;
provided, however, that either Party shall have the right to make such
public disclosure with a written notice
to the other Party as may be
necessary or appropriate to comply with applicable securities or other laws.


 

















 


11.11                     Counterparts. This Agreement may be executed by facsimile signature in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.


 


11.12                     Severability. Should any provision of this Agreement be determined to be illegal or
unenforceable, such determination shall not affect the remaining provisions of
this Agreement. To the extent permitted by applicable law, the Parties
waive any current or future provision of law which renders any provision of
this Agreement unenforceable in any respect. The Parties agree that any illegal
or unenforceable provision shall be construed or reformed so as to enforceably
effectuate, to the maximum possible extent, the Parties’ expressed intent.


 


11.13                     Confidentiality.              Each Party will during the term of this Agreement
and for two (2) years thereafter keep confidential all information
obtained by or in connection with this Agreement from the other Party, including marketing plans, customer information, technical
information, trade secrets and financial information. Nothing in this Section 11.13 prevents any announcement being made or any confidential information
being disclosed (i) with the written approval of the other Party; or (ii) to the extent required by law or any
competent Government Authority where failure
to disclose could result in a penalty or sanction, but a Party required to
disclose any confidential information will promptly notify the other Party, where
practicable and lawful to do so, before disclosure occurs and co-operate with
the other Party regarding the
timing and content of such disclosure or any action which the other Party may reasonably
elect to take to challenge the validity of such requirement. Notwithstanding
the foregoing, any information which: (i) can be shown to have been known
to the a Party prior to disclosure
to it by the other Party; (ii) is or
subsequently becomes generally available from public sources through no fault
or breach by the receiving Party; (iii) can
be proved by documentary evidence that the information was independently
developed by the receiving Party
without the use of any information
of the disclosing Party; or (iv) is
disclosed to the receiving Party
by others who are entitled to disclose it, except to the extent that the receiving Party gives undertakings of
confidentiality and/or non-use to such others with respect to the information
disclosed by them, shall not be subject
to this Section 11.13. In the event that the terms of this
confidentiality provision conflict with the terms of the Three-Way
Non-Disclosure Agreement between the parties, the terms of the Three-Way
Non-Disclosure Agreement shall control.


 


IN WITNESS WHEREOF,
the Parties hereto have executed this Joint Venture Agreement as of the
Effective Date.


 


OLYMPUS
CORPORATION


 


	
  Name:

  	
  Tsuyoshi Kikukawa

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  November 4, 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature:

  	
  /s/ Tsuyoshi Kikukawa

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CYTORI THERAPEUTICS, INC.

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Christopher J. Calhoun

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  CEO

  	
   

  	
   

  
							



 

















 


	
  Date:

  	
  November 4, 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature: 

  	
  /s/ Christopher J.
  Calhoun

  	
   

  	
   

  
						



 

















 


LIST OF ATTACHMENTS


 


	
  Exhibit 1:

  	
   

  	
  License/ Commercial Agreement

  
	
  Exhibit 2:

  	
   

  	
  License/ Joint Development Agreement

  
	
  Exhibit 2.1(b):

  	
   

  	
  Certificate of Incorporation

  
	
  Exhibit 2.1(c):

  	
   

  	
  By-Laws of NewCo

  
	
  Exhibit 3:

  	
   

  	
  Cytori Share Subscription Agreement

  
	
  Exhibit 4:

  	
   

  	
  Olympus Share Subscription Agreement

  
	
  Exhibit 5:

  	
   

  	
  Shareholders Agreement

  
	
  Exhibit 8.2(h)

  	
   

  	
  Cytori Officer’s Certificate

  
	
  Exhibit 8.3(e)

  	
   

  	
  Olympus Officer’s Certificate

  



 


LIST OF SCHEDULES


 


	
  Schedule 1:

  	
   

  	
  Description of Prototype of Product

  
	
  Schedule 5.1:

  	
   

  	
  Disclosure Schedule of Cytori

  
	
  Schedule 5.1(g)(i)

  	
   

  	
  Description of Licensed IP Provided by Cytori

  
	
  Schedule 5.1(g)(ii)

  	
   

  	
  Description of Patent Dispute